Citation Nr: 0827904
Decision Date: 08/18/08 Archive Date: 08/28/08
DOCKET NO. 07-06 585 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Boston, Massachusetts
THE ISSUE
Entitlement to service connection for bilateral optic nerve
atrophy, to include as due to herbicide exposure.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
O. Lee, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1968 to January
1970. He also had subsequent service in the Army National
Guard.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2005 rating decision of the RO
in Boston, Massachusetts, which denied service connection for
bilateral optic nerve atrophy.
In December 2007, a Travel Board hearing was held at the RO
before the undersigned Veterans Law Judge. A transcript of
that proceeding has been associated with the claims folder.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the veteran
if further action is required.
REMAND
After a thorough review of the claims folder, the Board finds
that the record is not sufficiently developed to ensure an
informed decision.
The record reveals that the veteran is currently in receipt
of disability benefits from the Social Security
Administration (SSA). At the December 2007 Travel Board
hearing, the veteran testified that he was awarded SSA
disability benefits in 2000 due to his bilateral eye
condition. The Board notes that SSA records have not yet
been associated with the claims file.
The United States Court of Appeals for Veterans Claims
(Court) has held that, where VA has notice that the veteran
is receiving disability benefits from the SSA and that
records from that agency may be relevant, VA has a duty to
acquire a copy of the decision granting Social Security
disability benefits and the supporting medical documents on
which the decision was based. See Hayes v. Brown, 9 Vet.
App. 67 (1996). Furthermore, the VCAA emphasizes the need
for VA to obtain records from other government agencies. See
38 U.S.C.A. § 5103A (b)(3), (c)(3) (West 2002). Under the
circumstances presented here, the AOJ should request the
veteran's SSA medical records and any determination of
benefits made by SSA.
The record also reveals that the veteran served in the Army
National Guard in or around 1980. See National Guard
examination report, August 1980; Travel Board hearing
transcript, December 2007. The August 1980 National Guard
examination report shows that upon vision examination the
veteran was found to have light perception in the right eye
at 20 feet and 20/50 in the left eye. It was concluded that
he had a visual defect - E3. It was recommended that he
receive a waiver based on refractive error. Aside from this
August 1980 National Guard examination report, there are no
additional medical records in the claims file. Therefore, on
remand the AOJ should obtain the veteran's National Guard
records.
At the December 2007 hearing, the veteran's representative
argued that although optic nerve atrophy is not one of the
diseases presumptively associated with herbicide exposure,
the veteran might nonetheless be able to establish service
connection on a direct basis, given that there is evidence of
eye problems as early as 1980. The representative indicated
that the veteran's optic nerve atrophy might qualify as a
chronic disease subject to presumptive service connection.
Service connection may be granted for a chronic disease,
including organic diseases of the nervous system and
progressive muscular atrophy, when manifested to a
compensable degree within one year of separation from
service. This presumption is rebuttable by affirmative
evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112,
1113 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309
(2007). In this regard, the Board finds that it is necessary
to determine the nature of optic nerve atrophy to include
whether such may be appropriately identified as an organic
disease of the nervous system or progressive muscular
atrophy. Additionally, it is also necessary to determine if
the veteran's optic nerve atrophy manifested within a year of
service separation. On remand, the veteran should be
scheduled for a VA medical examination to resolve the
aforementioned questions as well as the date of onset of his
bilateral optic nerve atrophy. See McLendon v. Nicholson, 20
Vet. App. 79, 81 (2006); 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R.
§ 3.159(c)(4)(i).
The Board observes that the most recent medical evidence of
record is from April 2005. The veteran has indicated that he
receives all of his treatment for his eyes from VA. As the
case is being remanded for other matters, the AOJ should
obtain any outstanding VA treatment records.
Accordingly, the case is REMANDED for the following action:
1. The AOJ should also obtain any
outstanding VA medical records for
treatment of the eyes from April 2005
to present.
2. The AOJ should also obtain from the
Social Security Administration (SSA)
records pertinent to the veteran's claim
for Social Security disability benefits,
including any decisions made and medical
records relied upon concerning that
claim. All efforts to obtain these
records should be fully documented, and
SSA should provide a negative response if
records are not available.
3. In addition, the AOJ should contact
the veteran's National Guard unit, and
any other appropriate service department
offices, and request records of his
National Guard service. The results of
such request, whether successful or
unsuccessful, should be documented in the
claims file, and the veteran informed of
any negative results.
4. The AOJ should then schedule the
veteran for a VA medical examination by
an examiner with appropriate expertise to
assess the date of onset and etiology of
his bilateral optic nerve atrophy. The
entire claims folder must be made
available to the examiner prior to the
examination, and the examiner must note
in the examination report that the claims
folder was reviewed in conjunction with
the examination. Any appropriate testing
should be conducted, and the results
reviewed, prior to the final opinion.
The examiner should state if optic nerve
atrophy is a type of organic disease of
the nervous system or is a type of
progressive muscular atrophy. The
examiner should also render an opinion as
to: (1) the date of onset of the
veteran's eye disability, and (2) whether
the disability is at least as likely as
not (i.e., to at least a 50:50 degree of
probability) related to the veteran's
military service, including but not
limited to Agent Orange exposure, or
whether such a relationship is unlikely
(i.e., less than a 50:50 degree of
probability). A rationale for any
opinion expressed should be provided.
4. Thereafter, the AOJ should
readjudicate the claim in light of all
the evidence of record to include all new
evidence received since the February 2007
SOC. If the benefit sought on appeal is
not granted, the veteran and his
representative should be furnished an
SSOC and afforded a reasonable
opportunity to respond before the record
is returned to the Board for further
review.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
No action is required of the veteran until further notice.
However, the Board takes this opportunity to advise the
veteran that the conduct of the efforts as directed in this
remand, as well as any other development deemed necessary, is
needed for a comprehensive and correct adjudication of his
claims. His cooperation in VA's efforts to develop his
claim, including reporting for any scheduled VA examination,
is both critical and appreciated. The veteran is also
advised that failure to report for any scheduled examination
may result in the denial of a claim. 38 C.F.R. § 3.655.
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).